Robert G. v. Dcs, R.G. ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROBERT G., Appellant,
v.
DEPARTMENT OF CHILD SAFETY, R.G., Appellees.
No. 1 CA-JV 17-0274
FILED 11-21-2017
Appeal from the Superior Court in Maricopa County
No. JD30974
The Honorable William R. Wingard, Judge Pro Tempore
AFFIRMED
COUNSEL
Robert D. Rosanelli Attorney at Law, Phoenix
By Robert D. Rosanelli
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Amber E. Pershon
Counsel for Appellee Department of Child Safety
ROBERT G. v. DCS, R.G.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Peter B. Swann and Justice Rebecca White Berch joined. 1
M c M U R D I E, Judge:
¶1 Robert G. (“Father”) appeals the superior court’s order
terminating his parental rights to R.G. 2 For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the biological parent of R.G., born in July 2015. In
August 2015, the Department of Child Safety (“DCS”) removed R.G. from
the parents’ care and filed a petition for dependency based on Father’s
abuse, neglect, and abandonment. Father failed to appear for a pretrial
conference on April 18, 2016, and for a contested dependency hearing on
August 10, 2016, without good cause. The superior court adjudicated R.G.
dependent in Father’s absence.
¶3 In December 2016, DCS moved to terminate Father’s parental
rights on the ground of abandonment. On January 31, 2017, and on
February 6, 2017, Father was read and given a FORM III, an admonition
notifying him of the need to attend all court hearings. Specifically, Father
was told that his failure to appear could result in a finding he has waived
his legal rights, admitted the allegations in the motion, and that the court
could proceed with termination of his parental rights based upon the record
presented. Father’s attorney was properly served with a notice of the
hearing and with DCS’s motion for termination.
¶4 On April 7, 2017, although Father appeared telephonically,
the court found Father failed to appear in person at the pretrial conference
1 The Honorable Rebecca White Berch, retired Justice of the Arizona
Supreme Court, has been authorized to sit in this matter pursuant to Article
VI, Section 3, of the Arizona Constitution.
2 Mother is not a party to this appeal.
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ROBERT G. v. DCS, R.G.
Decision of the Court
without good cause, 3 despite having received a proper notice. At the
conference, the court set a severance hearing for May 22, 2017, and
specifically ordered Father to appear in person in addition to the notices
Father had previously received. Three days before the severance hearing,
Father requested the hearing be continued or that he be allowed to appear
telephonically because he “just started a new job in Tucson at a car wash”
and his employer would terminate him if he were to attend the trial. The
court denied Father’s motion before the hearing, and when Father did not
appear, found him absent without good cause. The hearing proceeded in
absentia with Father’s attorney present. The court allowed counsel an
opportunity to object to DCS’s evidence and cross-examine DCS’s only
witness.
¶5 The court terminated Father’s parental rights, finding that
DCS had proven abandonment by clear and convincing evidence and that
termination was in R.G.’s best interests. 4 Father timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and the Arizona Revised Statutes (“A.R.S.”) sections 8-235(A),
12-120.21(A)(1), and -2101(A).
DISCUSSION
¶6 Father argues the superior court unreasonably compelled
Father to appear at the severance hearing in person, jeopardizing his
employment after he had been determined indigent. Father maintains that
his physical presence was not necessary because his credibility could have
been assessed in a telephonic appearance.
¶7 We review a court’s denial to allow a parent to appear
telephonically at a hearing for abuse of discretion. Willie G. v. ADES, 211
Ariz. 231, 234, ¶ 13 (App. 2005). A superior court abuses its discretion when
it “commits an error of law or ‘reaches a conclusion without considering
the evidence . . . or the record fails to provide substantial evidence to
support the trial court’s finding.’” Schickner v. Schickner, 237 Ariz. 194, 197,
3 Father informed the court telephonically he was unable to appear in
person because he lives in Tucson and his car broke down.
4 R.G. has resided in an out-of-home placement since the court order
dated August 4, 2015, when R.G. was only a few days old. During his
placement, Father has had no contact with the child, other than sending him
one card. Father has not financially supported the child.
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ROBERT G. v. DCS, R.G.
Decision of the Court
¶ 13 (App. 2015). “[T]he superior court retains full discretion to assess ‘what
constitutes good cause for failure to appear.’” Brenda D. v. DCS, 242 Ariz.
150, 156, ¶ 18 (App. 2017), review granted (Oct. 17, 2017).
¶8 Upon a party’s motion, “the court may permit telephonic
testimony . . . in any dependency, guardianship or termination of parental
rights hearings.” Ariz. R.P. Juv. Ct. 42 (emphasis added). Rule 42 does not
mandate that a court permit telephonic appearances. See Willie G., 211 Ariz.
at 234, ¶¶ 14–17 (the court did not abuse its discretion when it required
parents to appear in person for a contested dependency hearing when
parents voluntarily departed Arizona and argued that “extremely limited
financial resources” prevented them from returning for the hearing). At an
initial termination hearing, the court shall, however,
advise the parent . . . that failure to appear at the . . .
termination adjudication hearing, without good cause shown,
may result in a finding that the parent . . . has waived legal
rights, and is deemed to have admitted the allegations in the
motion or petition for termination . . . [and] that the
termination adjudication hearing may go forward in the
absence of the parent . . . and may result in the termination of
parental rights based upon the record and evidence
presented.
Ariz. R.P. Juv. Ct. 65(D)(3). If a parent subsequently fails to appear at the
termination hearing without good cause shown, but having received all
required notices and admonitions, he or she may be found to have waived
his or her rights, and “the court may terminate parental rights based upon
the record and evidence presented.” Ariz. R.P. Juv. Ct. 66(D)(2); see also
Manuel M. v. ADES, 218 Ariz. 205, 211, ¶ 19 (App. 2008).
¶9 Father was given notice and was admonished in compliance
with juvenile court rules of procedure on several occasions. The court
specifically ordered, well in advance of the hearing, that Father had to
appear in person at the termination hearing. On the record, we cannot say
the court exercised its discretion “on untenable grounds or for untenable
reasons.” See Miller v. Superior Court (State), 189 Ariz. 127, 129 (App. 1997);
see also Schickner, 237 Ariz. at 197, ¶ 13.
¶10 Father further argues his due process rights were violated
when he was not allowed to testify telephonically. Procedural due process
requires reasonable notice and an opportunity to be heard. J.D.S. v. Franks,
182 Ariz. 81, 95 (1995). Denying a parent’s request to testify telephonically
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ROBERT G. v. DCS, R.G.
Decision of the Court
is not a due process violation. See Willie G., 211 Ariz. at 235, ¶ 18 (parents
were not denied due process when their request to appear telephonically
was denied). Because Father received all required notices and admonitions,
his attorney was present during the hearing with an opportunity to object
to evidence and cross-examine witnesses, we find no due process violation
simply because Father did not avail himself of his opportunity to be
present.
¶11 On appeal, Father did not challenge the court’s finding of his
failure to appear without good cause at the termination hearing. 5 Father
also did not contest either the court’s finding that clear and convincing
evidence supported the statutory ground for termination of Father’s
parental rights or that the termination was in R.G.’s best interests. He has
therefore waived these arguments on appeal. See City Of Phoenix v. Fields,
219 Ariz. 568, 573, ¶ 23 (2009) (“Generally, we do not address arguments
raised in the trial court but not in the court of appeals.”); see also
ARCAP 13(a)(7)(B) (appellate briefs must contain “references to the record
on appeal where the particular issue was raised and ruled on”).
CONCLUSION
¶12 For the foregoing reasons, we affirm the court’s severance of
Father’s rights to R.G.
AMY M. WOOD • Clerk of the Court
FILED: AA
5 The court’s finding that Father failed to show good cause when he
elected to stay in Tucson rather than attend the hearing was within the
court’s discretion. See Willie G., 211 Ariz. at 234, ¶¶ 14–17.
5